Town Is Immune from Claims of Negligence Arising Out of Choking Death: McFarland v. Town of Mashpee


McFarland v. Town of Mashpee, Barnstable Sup. Ct. 

In April 2016, PDP obtained summary judgment in favor of the Town of Mashpee in a negligence action brought by Brent McFarland, a Mashpee resident, after he watched his girlfriend choke to death on a marshmallow while he awaited the Town’s EMT response. In McFarland v. Town of Mashpee, McFarland sought to recover directly for the emotional distress he allegedly experienced from the incident.  The Town filed a motion for summary judgment arguing, in part, that the Town was entitled to immunity from suit under the Massachusetts Tort Claims Act, Chapter 258, and that McFarland could not recover from the Town as a bystander to his girlfriend’s death, where his distress was truly caused by her death and not by any affirmative action of the Town.

On Labor Day weekend 2010, Catherine Gill had traveled to Cape Cod to spend the weekend with her new boyfriend, Brent McFarland, at his home in Mashpee. That weekend, a tropical storm with heavy rains hit Cape Cod.  After a night of drinking, Gill and McFarland returned home to McFarland’s house and, according to McFarland, went to bed.  An hour or so later, McFarland woke up in the middle of the night to noises coming from his kitchen only to find Gill in the kitchen choking in distress.  Gill was choking on several large marshmallows.  How Gill came to consume the marshmallows was never determined.  It is worth noting that Gill’s estate did not file suit against the Town.

Just before two o’clock on Saturday morning, September 4, 2010, McFarland dialed “911” to report that his girlfriend was choking.  Regional “911” dispatch for the Town of Mashpee is handled by the Communications Division of the Barnstable County Sheriff’s Office.  The Barnstable County dispatcher immediately contacted the Mashpee Police and Fire Departments who, in turn, responded to the McFarland premises. 

The EMT response, however, was allegedly delayed by as much as two minutes, twenty seconds, due to (1) the Town’s alleged failure to post adequate street signage at the entrance to McFarland’s dirt road; and (2) the inability of the EMTs to find the correct address.   For several years, McFarland had allegedly tried to have the name of his street changed from Jackbon Road to Carter Lane.  His reason for doing so was that he lived off of Jackbon Road, and Carter Lane was a paper street that encompassed his dirt driveway.  In support of this, he explained that using online maps and his assigned Jackbon Road address would not lead someone to his house.  That, coupled with the torrential rains, delayed the EMT response by approximately 2 minutes.

The Town moved for summary judgment on the grounds it was immune under Section 10(j) of the Massachusetts Tort Claims Act (MTCA), which bars claims against public employers for the failure to prevent or diminish the harmful consequences of a condition or situation not originally caused by such employer, including the “violent or tortious conduct of a third party.”  More specifically, we argued that McFarland could not recover for his alleged emotional distress because the Town’s alleged “failure” to (1) properly name and mark his street, update Town information systems, and respond to the scene quicker were all actions that entitled the Town to immunity. 

Superior Court Judge Robert Rufo first agreed that all of the wrongful acts that McFarland alleged the Town had committed were simply failures to act, and not affirmative acts by the Town.  Significantly, Judge Rufo acknowledged that the “original cause” of Gill’s death was her ingesting of the marshmallow and subsequent choking.  Nothing the Town did or didn’t do could be considered to originally causing this unfortunate chain of events. 

In trying to circumvent this immunity argument, McFarland argued in his opposition that he was not trying to recover for whatever harm the Town caused to Gill, but for the Town’s actions directed at him as to the designation of his address.  Judge Rufo rejected this argument by first recognizing that this was truly an action that arose out of Gill’s death, and that Gill would be barred from recovery from the Town for failing to respond quicker by the “original cause” provision of Section 10(j).  To that end, because Gill would have been barred from recovery if her estate filed suit, McFarland, as a bystander, was also barred from recovery for his emotional distress in watching his girlfriend’s choking death.  McFarland could not avoid dismissal by shifting focus from Gill’s choking to the Town’s failure to mark his street with a sign. In addition to another favorable ruling under Section 10(j), this ruling is significant in that the Court has signaled that claims for bystander liability cannot be creatively pled to circumvent a municipality’s immunity where the municipality clearly had no role in the original cause of the underlying injury.


Seth B. Barnett | 617.350.0950